Public defenders look for changes in domestic violence bill

Lawyers in the state say they support more awareness for domestic violence and consequences for offenders, but want to see changes to the Aisha’s Law, the proposed legislation to bring harsher punishments.

Members of state and county public defenders offices and justice organizations presented opposition testimony to House Bill 3, which would expand the legal definition of domestic violence to include strangulation, and create felony domestic violence charges along with law enforcement assessment tools, while also saying the legislation is beneficial in some ways.

“We understand the concerns of the community and of this house last term, with respect to the fact that something is going to be done about strangulation,” said John Martin, of the Cuyahoga County Public Defender’s Office.

The testimony before the House Criminal Justice Committee focused mainly on parts of the bill that would “create a new form of domestic violence” in which no proof of harm or intent to cause harm is required for the charge, which would be a felony.

The domestic violence offense would be expanded to prohibit “recklessly impeding the normal breathing or blood circulation of a family or household member by applying pressure to the throat or neck, or by covering the nose and mouth, of the family or household member,” according to the bill.

“Here’s the problem,” Martin said. “As written, you can have a couple of brothers horsin’ around, doing (mixed martial arts) in the backyard, and you can violate this.”

He referenced a mother covering a child’s mouth in church as another technical violation of the bill.

The bill was written after the death of Shaker Heights resident Aisha Fraser, who was killed by her ex-husband, Lance Mason. Mason had previously served prison time for domestic violence, including biting, choking and punching Fraser repeatedly.

Supporters of the bill have said the addition of the strangulation definition is important because many times there are no outward physical signs of strangulation, but long-term effects are possible for a domestic violence survivor.

Attorneys speaking for changes to the criminal sentences in the bill said harsher penalties, like making domestic violence an element of an aggravated murder charge, won’t bring about comprehensive change.

“There is no evidence that harsher penalties deter crime,” said Niki Clum, legislative liaison for the Office of the Ohio Public Defender. “Particularly, in the context of domestic violence, individuals are not acting rationally given the complex relationships that are the backdrop for these offenses.”

The state public defender’s office, along with Ohio Justice & Policy Center, refused to consider any enhancements related to the death penalty included in the bill, because they both oppose expansions of any kind to death penalty eligibility.

Clum noted that strangulation and suffocation can already be charged as second-degree felonies under current felonious assault statutes, and a lack of prosecution is a larger issue not covered by the legislation.

“Ohio case law currently has a low threshold for strangulation and suffocation to be charged as a felony,” Clum said. “If prosecutors are failing to do so, as it appears from proponent testimony both this session and last session that they are, that is a deeper problem with our criminal justice system that this bill is not going to fix.”

Clum and Martin said other community-level services, such as counseling and substance abuse treatment will have a more beneficial impact on domestic violence, but the judicial system benefits from hearing from the victim more than just at the point of police intervention.

“The victim has an opportunity to come to court at sentencing,” Martin said. “Let’s deal with the victim as she or he appears at that time, and not freeze frame that statement from the very beginning of this.”

A previous version of the bill passed the Ohio House in May of last year, but never made it through the Senate.